Do Courts Comply with S. 11(8) While Appointing Arbitrators?

 Section 11(8) of the Arbitration and Conciliation Act, 1996 ("Act"), as it exists now, reads:

"(8) The Supreme Court or, as the case may be, the High Court or the person or institution designated by such Court, before appointing an arbitrator, shall seek a disclosure in writing from the prospective arbitrator in terms of sub-section (1) of section 12, and have due regard to—

(a) any qualifications required for the arbitrator by the agreement of the parties; and

(b) the contents of the disclosure and other considerations as are likely to secure the appointment of an independent and impartial arbitrator."

This provision contemplates that before appointing a person as arbitrator, the Supreme Court or the High Court should seek a disclosure in writing in terms of S. 12(1) of the Act and have due regard to qualifications requirement for the arbitrator under the arbitration agreement and the contents of the disclosure and other conditions which are likely to secure and independent and impartial arbitrator.

This provision was introduced through the 2015 amendments and is effective from 23.10.2015. However, rarely does the Supreme Court or the High Courts mention compliance of S. 11 in their orders appointing arbitrator under Section 11. See, for instance, the order of the SC dt. 02.02.2026 in OT Technology Inc. v. HDFC Bank Ltd., Arb. Pet. 8/2026, which makes no mention of S. 11(8) explicitly or impliedly. 

Likewise, see this Order dt. 03.02.2026 of the Delhi High Court in Paramjit Singh v. FITTJEE Limited, Arb. Pet. 2/2026, which also does not make any reference to S. 11(8) nor complies with it. Worse, the High Court appoints the arbitrator and postpones compliance with S. 11(8) to after the appointment. It also states: 

"13... iv) The Sole Arbitrator is requested to furnish a declaration in terms of Section 12 of the Arbitration Act prior to entering into the reference. In the event of any impediment to the Arbitrator’s appointment on that count, the parties are given liberty to file an appropriate application before this Court."

The effect of this is to cast the burden on the parties for non-compliance by the High Court of the statutory mandate provided in S. 11(8)! That is not the correct approach. 

Contrarily, a perusal of the recent orders of the MP High Court, reveals compliance by the High Court of the mandate under S. 11(8). For instance, in JVS Foods Pvt. Ltd. v. MP State Agro Industries Development Corporation Ltd., 2026:MPHC-JBP:42122, the High Court observes in its Order dt. 17.06.2026:

"19. Considering the list of empanelled Arbitrators issued by the M.P. Arbitration Centre, Jabalpur, following order is passed : (i) Shri Alok Verma, Former Judge, High Court of M.P., AddressAkar, HIG, 1/463, Arvind Vihar, Baghmogaliya, Bhopal (MP)-462043, Mobile No. 79748-54407, 94250-07479, Tel. No.0755-4930600, Email - alokver55@gmail.com, who has consented in terms of Section 11(8) of the Act of 1996, is appointed as sole Arbitrator to resolve the dispute between the parties in the case." (emphasis added).

Whether this amounts to a complete compliance of S. 11(8) is not apparent from the aforesaid observations. However, the attempt to comply with the statutory mandate is at least clear from this Order, in contrast with the orders of the Supreme Court and the Delhi High Court.

Readers may throw more light on whether High Courts and the Supreme Court complies with the statutory mandate under S. 11(8).

Referencing Errors in the Third Schedule to the Arbitration & Conciliation Act, 1996

Third Schedule to the Arbitration & Conciliation Act, 1996 ("1996 Act") is the Geneva Convention of on the Execution of Foreign Arbitral Awards. Article 3 to the III Schedule reads:

"If the party against whom the award has been made proves that, under the law governing the arbitration procedure, there is a ground, other than the grounds referred to in Article 1(a) and (c), and Article 2(b) and (c), entitling him to contest the validity of the award in a Court of Law, the Court may, if it thinks fit, either refuse recognition or enforcement of the award or adjourn the consideration thereof, giving such party a reasonable time within which to have the award annulled by the competent tribunal." (emphasis added)

Article 1 is quoted in its entirety at the end of this blog post. In the III Schedule, it is divided into Articles 1(1) and 1(2). Article 1(1) deals with arbitral awards which are recognisable and enforceable and Article 1(2) concerns the conditions for recognition and enforcement. 

The text of the Geneva Convention does not seem to make this division. Article 1 of the text of the Conventions consists of two paragraphs as noted below:

"In the territories of any High Contracting Party to which the present Convention applies, an arbitral award made in pursuance of an agreement, whether relating to existing or future differences  hereinafter called "a submission to arbitration") covered by the Protocol on Arbitration Clauses, opened at Geneva on September 24, 1923, shall be recognised as binding and shall be enforced......

To obtain such recognition or enforcement, it shall, further, be necessary..."

As would be apparent Article 1 of the Convention was not divided in two sub-articles. However, in the III Schedule this subdivision has resulted in a referencing error in Article 3- there is no Article 1(a) or (c)- there are only Articles 1(2)(a) and 1(2)(c).

The referencing error was not in the Arbitration (Protocol and Convention) Act, 1937. The Second Schedule to the 1937 Act did not divide Article 1 into two parts:

"Article I.-In the territories of any High Contracting Party to which the present Convention applies, an arbitral award made in pursuance of an agreement, whether relating to existing or future differences (hereinafter called " a submission to arbitration ") covered by the Protocol on Arbitration Clauses opened at Geneva on September 24th, 1923, shall be recognised as binding and shall be enforced...

To obtain such recognition or enforcement, it shall, further, be necessary..." 

Hence, Article 3 to the Second Schedule to the 1937 Act did not contain this referencing error. On the other hand, III Schedule to the 1996 Act contains this referencing error in view of the division of Article 1 into two sub-Articles.  The Arbitration and Conciliation (Amendment) Bill, 2024 does not seem to address this referencing error. Somehow, this error seems to have escaped the attention of everyone in the last thirty years. The division in Article 1 to the Third Schedule, not being a reflection of the Convention's text, should be removed in the upcoming amendments to the 1996 Act. 

Article I of III Schedule to the 1996 Act:

"ARTICLE 1.—(1) In the territories of any High Contracting Party to which the present Convention applies, an arbitral award made in pursuance of an agreement whether relating to existing or future differences (hereinafter called “a submission to arbitration”) covered by the Protocol on Arbitration Clauses opened at Geneva on September 24th,1923, shall be recognised as binding and shall be enforced in accordance with the rules of the procedure of the territory where the award is relied upon, provided that the said award has been made in a territory of one of the High Contracting Parties to which the present Convention applies and between persons who are subject to the jurisdiction of one of the High Contracting Parties.

(2) To obtain such recognition or enforcement, it shall, further, be necessary:—

(a) that the award has been made in pursuance of a submission to arbitration which is valid under the law applicable thereto;

(b) that the subject-matter of the award is capable of settlement by arbitration under the law of the country in which the award is sought to be relied upon;

(c) that the award has been made by the Arbitral Tribunal provided for in the submission to arbitration or constituted in the manner agreed upon by the parties and in conformity with the law governing the arbitration procedure;

(d) that the award has become final in the country in which it has been made, in the sense that it will not be considered as such if it is open to opposition, appeal or pourvoi en cassation (in the countries where such forms of procedure exist) or if it is proved that any proceedings for the purpose of contesting the validity of the award are pending;

(e) that the recognition or enforcement of the award is not contrary to the public policy or to the principles of the law of the country in which it is sought to be relied upon."